Yesterday, the Columbus Dispatch's Jim Siegel reported that a new ballot access bill passed the Ohio Senate. The bill (S.B. 186) establishes minimum criteria for minority parties seeking to place their candidates' names on the ballot. The article begins:

A divided Ohio Senate approved new criteria today for recognizing minority political parties in Ohio that Libertarians and others say will kick them off the ballot.

Ohio has been without any minority party criteria since a federal court struck them down in 2006. Since then, secretaries of state have been recognizing minor parties via directives.

Sen. Bill Seitz, R-Cincinnati, said Senate Bill 196 will legalize ballot access, restore the rule of law and set clear rules for everyone to follow. But the Libertarian Party is calling it the “John Kasich Re-election Protection Act.” The presumption is that a Libertarian candidate would “ steal” more votes from Kasich than the Democratic candidate in the 2014 gubernatorial election.

The bill passed 22-11 and now moves to the House.

"This is machine-style politics at its very worst," said Kevin Knedler, chairman of the Libertarian Party of Ohio. “Kasich has stabbed fiscal conservatives, tea party activists, and Libertarian Republicans in the back several times, and he's scared to death he'll be out of a job when they exercise their democratic right to vote for a candidate they can trust to do what's right for Ohio."

Under the bill, for a minor party to be recognized on the ballot, it must collect signatures equal to 1 percent of the total votes cast in the most recent gubernatorial or presidential election – that would amont to about 56,000 signatures now – and they must include 500 signatures from each of eight congressional districts. Then, to get automatic recognition for four years, the party must get at least 3 percent of the vote in the next gubernatorial or presidential election.

If passed by the Ohio House, the bill likely will face legal challenges. The article notes that Senate Minority Leader Eric Kearney (D-Cincinnati) has already questioned the bill's constitutionality and that "[m]inor party offficials are discussing legal options[.]"

Although the Supreme Court often has subjected ballot access laws to strict scrutiny, the Court also has stated that threshold ballot access laws will be invalidated only if unduly burdensome or unequally applied. As Siegle reported, Ohio's last election law restricting minority party ballot access was struck down by the Sixth Circuit in 2006. Indeed, in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, the Sixth Circuit invalidated an Ohio law that required political parties to nominate candidates through primary elections. The law also established a deadline for filing petitions of nomination with the Secretary of State at 120 days prior to primary elections. According to the court, "[T]he restrictions at issue in this case serve to prevent a minor political party from engaging in the most fundamental of political activities--recruiting supporters, selecting a candidate, and placing that candidate on the general election ballot in hopes of winning votes and, ultimately, the right to govern." Ohio's ballot access law was unduly burdensome. As a result, the Court ruled that the law violated the First Amendment right of association.

However, the Supreme Court has upheld ballot access laws similar to the one the Ohio Senate passed yesterday. In Munro v. Socialist Workers Party, 479 U.S. 189 (1986), the Court upheld a Washington law limiting minority party ballot access in general elections to those who had obtained signatures equal to one percent of the total votes cast in the immediately preceeding primary election. The Court concluded: "[B]ecause Washington affords a minority-party candidate easy access to the primary election ballot and the opportunity for the candidate to wage a ballot-connected campaign, we concluded that the magnitude of [the law's] effect on constitutional rights is slight[.]"

Further, in Miller v. Lorain County Bd. of Elections, 141 F.3d 252, the Sixth Circuit upheld an Ohio law requiring independent candidates to obtain signatures amounting to "one percent of qualified electors voting in the last gubernatorial election that reside within the district, political subdivision or portion thereof where the election is held." There, the court determined that the law's restrictions were "not so burdensome on potential independent candidates as to render [them] unconstitutional."

On its face, the more difficult question appears to be the bill's requirement that minority party candidates secure 500 signatures from eight congressional districts. In Jenness v. Fortson, the Court considered the constitutionality of a Georgia law that required independent candidates for president to get 5,000 signatures to get onto the ballot. 403 U.S. 431 (1971). The Court affirmed "an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot--the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election." According to the Court, the state's interests justified the burden imposed on independent candidates. But, the Georgia law did not contain a signature-distribution requirement similar to that of S.B. 186.

The current Ohio ballot access bill is unlikely to face much opposition in the Republican-controlled House; and, Gov. John Kasich (R) will likely sign the bill if it reaches his desk. As a result, the question as to whether the burden imposed by S.B. 186 outweighs an "important state interest" will likely be answered in time. Stay tuned.